Tassell v Hayes [1987] HCA 21

High Court of Australia Mason, Wilson, Brennan, Deane and Dawson JJ. Tassell v Hayes [1987] HCA 21

ORDER Appeal allowed. Questions in the case stated for the Full Court of the Supreme Court of South Australia answered as follows: (i) Does a court of summary jurisdiction have the power to proceed with an ex parte hearing and determination of an information for a minor indictable offence? No. (ii) If yes to question (i) was the determination to proceed ex parte properly made in the circumstances of this case? Does not arise.

Cur. adv. vult.

The following written judgments were delivered:—

June 5 Mason, Wilson and Dawson JJ.

The respondent laid an information against the appellant, charging that on 4 April 1985 at Lower Mitcham in South Australia he entered a dwelling-house with intent to steal therein, contrary to s. 171 of the Criminal Law Consolidation Act 1935 S.A., as amended. The offence is a minor indictable offence as defined in s. 4 of the Justices Act 1921 S.A., as amended ("the Act"). It could therefore be heard and determined, in a summary way, by a court of summary jurisdiction in accordance with Div. II of Pt V of the Act.

The appellant was brought before a court of summary jurisdiction in Adelaide. There were several remands, leading up to the fixing of 23 September 1985 as the date on which the matter would be heard. The appellant was released on bail to appear on that date. When the matter was called on 23 September the appellant failed to answer to his bail. However, counsel appeared on his behalf. The prosecutor requested leave to proceed "ex parte" in the absence of the appellant and the special magistrate acquiesced in that course. There was no objection by counsel for the appellant. It appears from the transcript of the proceedings that the identity of the alleged offender was in issue but, as Bollen J. observed in the Full Court, it would be speculative to suppose that the appellant deliberately stayed away from the hearing so as to avoid the risk of a positive identification by the principal witness for the prosecution. The case proceeded. Witnesses for the prosecution were cross-examined by counsel for the appellant. At the close of the prosecution's case counsel submitted that as a matter of law there was no case to answer. That submission being overruled, counsel then led evidence for the defence and addressed the court. At the conclusion of addresses the magistrate indicated that he would deliver his decision on the following morning and adjourned the proceedings. The next morning the appellant was present, with a different counsel. His earlier counsel was given leave to withdraw. No application of any kind was made by or on behalf of the appellant. The magistrate convicted the appellant and remanded him in custody to 2 October 1985 for the fixing of penalty. On that day he sentenced him to imprisonment for six months.